This decision highlights the jurisdictional issues that can arise once litigation ensues and does a substantive review of the relevant caselaw post – Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572 (“Van Breda”).
Sinclair v. Amex Canada Inc., 2023 ONCA 142 (“Sinclair”),involves an appeal by three Italian companies, Venezia Turismo, Venice Limousine S.R.L and Narduzzi e Solemar S.L.R (the “Italian Companies”), that sought to dismiss or stay an action brought by the respondents, a Canadian family, in the Superior Court.
The respondents in Sinclair were injured in an accident that occurred in Venice, Italy, while they were passengers on a water taxi owned by one of the appellant companies. The respondents had booked their trip through Centurion Travel Service, a travel-related service provider in Canada. The Italian Companies argued that the Ontario court lacked jurisdiction over them since the accident occurred in Italy and the travel arrangements were made through Centurion Travel Service.
The sole issue before the motion judge was whether the fourth presumptive connecting factor from Van Breda gave the Superior Court jurisdiction over the appellants with respect to the action started by the respondents. The motion judge concluded that it did.
However, the Court of Appeal held that the motion judge erred in her analysis and allowed the appeal, staying the action against the appellants. The court found that the travel arrangements made through Centurion Travel Service did not establish a real and substantial connection between the appellants and Ontario, and the accident’s location was the decisive factor in determining jurisdiction.
Analysis
As indicated by Justice Lebel in paragraph 90 of Van Breda, the test to establish a presumptive connecting factor is the following:
(a) the defendant is domiciled or resident in the province;
(b) the defendant carries on business in the province;
(c) the tort was committed in the province; and
(d) a contract connected with the dispute was made in the province.
Justice Nordheimer, writing for the majority, emphasized that the Van Breda test is intended to place limits on the assumption of jurisdiction by a province’s courts and that the presumptive connecting factors must be viewed from the perspective of the defendant disputing jurisdiction. Each defendant’s position must be looked at independently to determine whether there is a presumptive connecting factor that attaches to that defendant. If there is, then that defendant may still be able to rebut the presumptive connecting factor.
Justice Nordheimer highlighted that the appellants could not be brought under the jurisdiction of Canadian courts based solely on the fact that the respondents had a contractual relationship with Amex Canada. The contract between the respondents and Amex Canada in Ontario had limited relevance to the litigated matter. The absence of any specific details of the contract in the pleadings, such as provisions or breach of contract, reinforced this lack of relevance. Essentially, the case was presented solely as a tort claim.
Alternatively, Justice Nordheimer indicated that even if he was in error in his analysis, the Italian Companies had successfully rebutted the presumptive connecting factor. None of the appellants could have been reasonably expected to be summoned to legal proceedings in Ontario since the task they accepted was to be performed in Italy and the events in question took place there.
Furthermore, the water taxi driver involved is an Italian national, and there is no connection between the events and the appellants to Ontario. Using a credit card company carrying out business in Ontario to make travel arrangements does not establish a relationship between the respondents and the appellants that could justify jurisdiction in Ontario.
Conclusion
Essentially, upholding the affirmation made by the motion judge would have had significant consequences as it would broaden the jurisdiction of Ontario’s courts to anyone involved in travel arrangements facilitated by a credit card company with a presence in Ontario. This would apply irrespective of where the involvement occurs globally. This outcome would have resulted in the type of jurisdictional overreach that Van Breda warned against.
